Fulani herdsmen, herdsmen, hoodlums, intruders from Chad and neighbouring countries, or whatever appellation ascribed to their murderous activities, these names emit fumes of terror, anguish and fear. The fear they evoke is well founded. What started out as recurrent violent clashes between nomadic herdsmen and their host farming communities in Kaduna, Plateau, Kaduna, Nasarawa, Adamawa, Benue and more recently, Enugu and Abia States, has now assumed genocidal dimensions. The clashes are rooted in protracted disputes over land spaces needed for grazing and cattle rearing.

Farmers complain that the indiscriminate grazing on their farmlands by the herdsmen cause massive destruction to their crops, vegetation and traditional livelihoods, just as the faecal matter from the cattle contaminate water and food sources. Hardly any week passes without reports of herdsmen sacking and slaying entire communities and their inhabitants when they are denied access to grazing areas the host communities regard as farmlands. Hundreds have been reportedly killed, and tens of thousands displaced, but yet, the marauding herdsmen have neither been apprehended nor brought to justice.

The National Grazing Routes and Reserve Bill 2016 to the rescue

Currently undergoing parliamentary deliberation is a proposed legislation (National Grazing Routes and Reserve Bill 2016) that aims to bring the incessant herders-farmers clashes, to an end, through the establishment of grazing routes and reserves across the country. The proposal for the establishment of grazing routes has stirred ethnic tensions, especially in the Southern part, where the bill continues to rouse suspicion. Creating special grazing routes is widely perceived as an attempt to grab land from farming communities and hand it over to the nomadic herdsmen to graze their cattle, with not a few, vowing to resist any move by the Federal Government, to endorse by legislation, the creation of such routes.

A cursory look at the contentious 35-claused bill shows that a Commission is to be established as a corporate body, with well-defined governance structures and systems (Part I). As enumerated in Part IIof the Bill, the functions of the Commission include the establishment, management, maintenance and control of cattle routes, farm camps and grazing reserves in different parts of the country, prescribing persons who may use the grazing reserve, number and type of stocks that may be permitted therein. The Commission also has the power to grant grazing permits; demarcate or advise on the boundaries of the grazing route and reserves; prescribe fees for the usage of the routes and reserves; regulate conditions of entry; impose penalties for breach of its regulations, and prosecute those in breach.

Part IV details the procedure for acquiring Grazing Routes and Reserves and it includes:

o A physical/geographical analysis of the land use to ascertain the best locations within the States for such routes or reserves.

o That the 36 State Governors cooperate with the Commission to accomplish this objective. The Bill requires Governors to transfer identified land to the Commission for use as grazing land. The Governor shall then issue an Order stipulating the limits of the land acquired and the interest transferred.

o The bill provided for notices to be issued and or served on the affected citizens,

o Clause 21 of the Bill mandates the Commission to pay “the compensation necessary” to persons and communities whose interest in the land are affected by the transfer.

The Nigerian 1999 Constitution and the Nigeria’s land use policy – the Land Use Act of 1978 – provide a prism through which the competing economic interests of the nomadic Fulani herdsmen and farming settlements can be explored. Along these lines, any attempt at the exploration of solutions to the herdsmen-farmers menace must answer these four germane questions:

Is the Grazing Bill compatible with the Land Use Act?

Does the Grazing Bill satisfy the public interest requirement for the compulsory acquisition of land under the Land Use Act?

What are the implications of the Grazing Bill on constitutionally-protected rights, especially the right to non-discrimination?

Are land owners whose lands are expropriated by the Commission availed with effective legal remedies?

The Grazing Bill is Incompatible with the Land Use Act

Several provisions in the Grazing Bill are tension triggers. The first tension trigger is the evident contradiction between the Land Use Act (LUA) and the Grazing Bill. LUA is the principal land policy that governs the administration of land in Nigeria. Section 1(1) of the Land Use Act vests the entire landmass in the territory of each state of the federation in the State Governor. Transferring parts of the governor’s powers to the Commission, without constitutional approval, represents an usurpation of statutory authority, with strong potential to aggravate social tension, and upset state-federal collaborations.

Secondly, the power conferred on the Commission to identify suitable land for grazing, and the requirement for state governors to transfer the identified land to the Commission, veiledly subordinates State governors to the Commission—another constitutional aberration! This also means that affected landowners and communities have practically no say in the making of land takeover determinations. Thirdly, the Commission’s power to “identify land” is inherently prone to abuse, and will potentially provoke social unrests especially where the choicest arable land are identified and set aside for special use by “foreigners.”

The Grazing Bill Fails to Satisfy the Public-interest Requirement

Section 28 of the Land Use Act empowers the governor to revoke a right of occupancy for overriding public interest. The begging question is whether the establishment of a grazing reserve or grazing routes for nomadic herdsmen is in the overriding interest of the public or for purposes beneficial to the public. To consider what amounts to public purpose, we look no further than in section 51 of the interpretation section particularly paragraph (1) (f) of the LUA where public purposes was interpreted to include - for obtaining control over land required for or in connection with economic, industrial or agricultural development (emphasis mine).

Since the Land Use Act recognises agriculture as falling within the public use category under which land can be compulsorily acquired, this connotes that cattle-rearing which is the stock-in-trade of nomadic herdsmen can be described as an agricultural activity. However, for two main reasons, the test of public interest collapses when the nature and benefit of the agricultural activity proposed under the Grazing Bill is further scrutinized. First, the activity in question is for the benefit of a particular group who have been identified with a particular economic activity. Secondly, the activity seeks a federal fiat to displace hundreds of thousands from their ancestral home for an economic activity that is structured in a manner that may not be beneficial to them and also destructive to their means of livelihood.

A long list of judicial authorities has clarified what overriding public interest means. Shedding light on the nature of public interest, the Supreme Court in Lawson vs. Ajibulu [(1991) 6 NWLR (pt 195) 44] held that the Governor’s power of revocation for overriding public interest does not cover any revocation of an individual’s interest in land and granting same to another for a private purpose. Since the purpose of revocation is for public good and not for the benefit of an individual, any such revocation for the interest of an individual is null and void and of no effect. The court stated:

“But I conceive that the acquisition must primarily be made to fulfill the legitimate ends of government and not directly or indirectly for the sole and personal benefit of any individual or group of persons with certain vested interests which either by accident or design tally with the purpose government (emphasis) is empowered by law to compulsorily acquire other people’s land.”

From the decision above, it is trite law that although a revocation made in compliance with the relevant provision of the Act is valid, it may be declared void by the court if the acquisition was not made to fulfill the legitimate ends of government, but simply to transfer the acquired land to an individual or group of persons with certain vested interests which either by accident or design are similar to the purpose for which the state may acquire other people’s property. By implication, it would definitely not be in the interest of the “general public” for farmers to be displaced from their farming and fishing activities to pave way for the establishment of grazing routes or grazing reserves that will benefit a few.

The Grazing Bill Offends Constitutionally-protected Rights

According to section 42(1) of the Constitution, a citizen of Nigeria of a particular community, ethnic group [emphasis added], place of origin, sex, religion or political opinion shall not, by reason only that he is such a person: (a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions are not made subject; or (b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage [emphasis added], that is not accorded to citizens of Nigeria of other communities ,ethnic groups, places of origin, sex, religious or political opinions.

The above provisions of the Nigerian constitution lend credence to the widespread sentiments against the enactment or application any law, or the taking of any administrative or executive action that may favour a particular community or group. In light of the above, the question that comes to mind is whether the desire of the federal government to create grazing reserves or routes for migratory herdsmen of a particular ethnic group(known for cattle breeding), not just within their immediate particular locality, but around the country, does not constitute discriminatory behavior. Related to this is whether such apparent discrimination qualifies as an official state policy favouring and promoting the economic interest of the nomadic herdsmen of the Fulani ethnic group to the detriment of other ethnic groups thereby offending the provisions of the Constitution of Nigeria.

Insufficiency of Legal Remedies in the Grazing Bill

Across different tribes and ethnic groups in Nigeria, land is collectively-owned, and as such, not easily transferable because landholders merely hold it in trust for generations unborn. Because of the transgenerational and cultural value attached to land, compensation alone may be insufficient to placate individuals or communities that are likely be displaced from their ancestral homes to make way for the grazing routes. The bill contains no holistic resettlement plan for such communities that may be uninterested in monetary compensation.

Furthermore, revocation of a right of occupancy or government’s compulsory acquisition of land is often aggravated by an obsolete compensation regime that is calculated on the basis of an arbitrary valuation of structural or economic crop improvements on the land. When paid at all, the payment of compensation has always been untimely, and no serious efforts is made to address or assuage the feelings of indigenous communities or landholders who have underlying profound cultural, social-political values and spiritual attachments to land holdings.

Rising Social Tensions

What particularly makes the grazing bill a hard-sell is that it is being introduced at a time the social tension the herdsmen activities have generated is still high, and the scars still fresh in the memories of grieving families and communities. The gory images of slit throats, amputated hands, stabbed chests and bloodied faces of innocent Nigerians butchered in their homes and the tales of terror in communities where herdsmen graze their cattle have become too frequent to the point of dimming any assurance that the grazing bill will remedy this ugly trend. More so, hurriedly introducing a grazing bill designed to take over communal lands, without thoroughly and conclusively investigating the killings, and without punishing perpetrators of the dastardly acts, fuels the growing perception that the herdsmen’s notorious activities tacitly enjoy governmental support. This trust deficit is one single major element that will work against the safe implementation of the bill, even if it is passed into law.

What is the Way Forward?

While not deprecating cattle-rearing as a viable economic enterprise with huge potential for revenue generation like farming, it must be emphasized that farming – in the sense of the cultivation of food crops and cash crops -which are the economic live-wire of many of the settled communities must not be destroyed, to make way for the grazing routes.

To make the grazing reserve bill more acceptable, the government must embark on confidence-building measures, targeted at the likely host farming communities. One way to build confidence is by setting up a victim support fund to compensate for the human and material losses to persons and communities that have suffered from the deadly attacks of the violent nomadic herdsmen. Going ahead to pass the Grazing Bill into law without any form of reparation is likely to be met with hostility and resistance. Reparation will go a long way in alleviating the sufferings of the people and communities who are at the receiving end of the violence, and bring it, some sort of closure.

The setting up of an elaborate specialised dispute resolution mechanism that would be proactive in resolving farmers and nomadic settlers’ differences will greatly obviate the desire of the parties to resort to violent self-help to settle their grievances. In addition, instead of opting for outright acquisition of the proposed land for grazing, the proposed grazing commission should rather negotiate for long leases, where the communities still retain the reversionary interests in the acquired land. This approach will placate opposition to the bill, imbuing locals with confidence that they are not being permanently deprived of their lands. This means that they still retain their freehold titles to the customary lands, and can bequeath them to future generation as issues involving land are very sacred, especially in the Southern part where the landmass is not as massive as in the northern part of the country.

Finally, civilized societies, like [the United States of] America, Australia, Canada, South Africa, have since moved away from randomized grazing to the ranching system where the herds of cattle are kept within well-defined boundaries with perimeter fencing to prevent the cattle from straying into the farms of the host communities and which also makes it difficult for rustlers to rustle cows. Another advantage is that it would not require a very wide expanse of land like the grazing routes that may end up not being properly defined or charted. It is suggested here that this arrangement is best workable by public-private partnerships, whereby ranches are set up with the host farming communities are given the opportunity to cultivate livestock or cattle feeds for the benefit of the herdsmen, thereby creating mutually beneficial relationships.